The Mining and Lands Commissioner
In the matter of the Conservation Authorities Act
And in the matter of
An appeal against the refusal to issue permission to place fill on Street A, being part of Lot 17 in Concession I W.Y.S. in the City of North York.
And in the matter of
An appeal against the refusal to issue permission to place fill on Streets A and B, being part of Lot 17 in Concession I W.Y.S. in the City of North York.
The Metropolitan Toronto And Region Conservation Authority and
The Corporation of The Municipality of Metropolitan Toronto
A. Leibel and J. Ryan, for the appellant.
J. Wigley, for the respondent,
The Metropolitan Toronto and Region
Conservation Authority, herein referred to as "the Authority".
J.S. Sillers, for the respondent, the Corporation of the
Municipality of Metropolitan Toronto, herein referred to as "Metro".
The appellant appealed to the Minister of Natural Resources from the refusal of the Authority to issue permission to place fill on two proposed streets on a proposed plan of subdivision. Pursuant to Ontario Regulation 364/82, the appeals were heard by the Mining and Lands Commissioner in Toronto.
At the outset it was agreed by counsel for the appellant and the Authority that the two appeals be heard together. John S. Sillers appeared on instructions of Metro and moved that Metro be made a party to the appeals as part of one of the sites of the proposed fill was owned by Metro and as it was alleged that the proposal contravened the policies of Metro as set out in its official plan. L.J. Darkes appeared on instructions of the Corporation of the City of North York. He indicated that his instructions were to convey to the tribunal the city's position and its opposition to the applications of the appellant. He stated that there were requested amendments to the official plan and the zoning by-laws and that he had no intention of actively participating in the proceedings but requested that the city be advised of the outcome.
Following submissions it was ruled that Metro be added as a party but that the Corporation of the City of North York not be so added.
Further it was agreed by counsel that the only issue involved in the matter was the issue of conservation of land and that matters of control of flooding or pollution were not involved in the matters to be considered.
Although the application refers strictly to streets it is apparent from the proposed plans and the cross-sections of the proposed fill, that fill will be placed on part of the lots as well as the streets in the subdivision. The appellant owns approximately twenty-eight acres of land on the east side of Bathurst Street in the City of North York. The land is north of Sheppard Avenue West and is bounded on the north by Bathurst Park and on the east by York Cemetery. A number of residential buildings have been erected between Sheppard Avenue West and the lands of the appellants. These residences are serviced by Don River Boulevard which exits onto Sheppard Avenue West.
The appellant and his predecessors and optionees have proposed a number of subdivisions of the lands. The current proposal creates a number of lots along the north and easterly boundaries leaving the southerly part and the part of the land on the west side of the Don River in an undeveloped condition. Part of the land to be included in the proposed subdivision is the bed of an ancient mill pond. It is proposed to fill this mill pond raising it above the regional flood elevation and hence the removal of the consideration of matters affecting the control of flooding. However, in so doing it is necessary to place significant amounts of fill on the proposed roadways and to slope the fill from the roadways to the boundaries of the subdivision. At Bathurst Street the amount of fill would have a depth of eight metres. The depth is gradually reduced with the result that the amount of fill along the north limit is negligible and along the east limit is negligible in parts but of a depth of three metres near the northeast corner of the proposed plan of subdivision. Consequently, a significant amount of fill is required with some of the building sites having as much as two to three metres of fill.
John R. Bousfield, a professional planner, gave evidence on behalf of the appellant outlining the history of attempts to obtain approvals of plans of subdivision. He pointed out that the lands are in a fairly natural condition with a large house and a number of outbuildings. Scattered woods and remnants of fields cover the area. His evidence was that there is a substantial tree cover which was not significant in any environmental sense as having any unusual species. The species growing were mature black willow, poplar, ash, birch and sumach. He had caused an environmental list report to be prepared and he was satisfied there was no special vegetation on the subject lands meriting preservation by reason of its intrinsic worth or rarity.
Bousfield indicated that the current proposal was to lay out forty-nine building lots and approximately half of the site would be retained as an area of open space and should be conveyed to the Authority or another public body. The witness pointed out that, in addition to providing access to Bathurst Street for the proposed subdivision and raising the level of the proposed lots to an elevation which would provide for grading and drainage, the fill would provide an access road from the Don River Boulevard in the event of a regional storm as that road is presently below the elevation of the regional flood.
The witness proposed to outlet the subdivision at an existing traffic signal on Bathurst Street. This outlet required fill to be placed on Bathurst Street as Bathurst Street and its widenings have been filled to a substantial depth and the adjoining street would require a significant amount of fill to raise it to the required gradients. It was his estimate that 31,750 cubic metres of fill would be required for the first application with depths varying from 7 to 1.2 metres, the greatest depth being required to create access to Bathurst Street and 30,250 cubic metres would be required for the second application which includes fill to level the pond and grade the lots.
In the course of the negotiations with the Authority the staff of the Authority wrote letters to the witness indicating that they were prepared to recommend the proposed subdivision with certain amendments, which in the witness' opinion had been complied with. Even after this concurrence further adjustments and a reduction of the number of lots were made at the insistance of the City of North York. Notwithstanding the adjustments the Authority rejected the application for the placing of fill on the grounds that the application, as submitted, "would affect the conservation of land". The witness indicated that in his fairly extensive experience this was the first occasion on which the respondent had adopted this reason for rejecting the placing of fill. He expressed his opinion, as a planner, that the purpose of or objective of "conservation of land" was the prevention of erosion whether it was by gullying or slippage. He gave by way of illustration, the placing of fill on the top of slopes creating instability. It was his understanding as a planner that the phrase "conservation of land" did not mean the preserving of land in its natural state, or in an open state, or in an unbuilt state. He indicated that the issue of conservation of land was not raised in the discussions with officials and that if it were the true issue in this case there is no evidence that the placing of the fill would create problems of erosion. He stated that valley slopes and river banks are susceptable to erosion. It was submitted that none of the developments would be placed on such areas and any such areas on the lands of the appellant would be conveyed to public ownership.
The appellant called Brian Roderick Gray, an expert in geotechnical engineering, who has had fourteen years experience in the field of new subdivisions and erosion control and who had on occasion provided services to conservation authorities. It was the opinion of this witness that with a proper regime which would control the type of fill, the amount of fill and the amount of compaction at appropriate times there would be no risk of erosion from the placing of the fill in question. In addition to assessing the subject lands he had made a site reconnaissance survey of the slopes of adjacent lands including the slopes to the north on Bathurst Park and to the east on the lands of York Cemetery. It was his opinion from his studies that the slopes were adequate and would not be affected by the proposed placing of the fill. He also caused a sample of the ground water to be analyzed to determine if there was any potential of attack on the concrete foundations due to high sulphate content of the water table. He had taken samples of the soil on the subject lands and caused an analysis to be made of the size and relative stability of such particles of earth. He reviewed the plans for the depth of fill. He had also prepared a plan for the strengthening of the existing culvert and in his opinion the fill should be densified to what he terminated "95% standard Proctor density". With this density and slopes of two horizontal to one vertical he was of the opinion that the proposed fill could be placed without any problems resulting from geotechnical concerns.
Gray proposed that the filling on the easterly part of the subject lands be done after the filling of the access road on Street "A" which led to Bathurst Street is completed in order that construction and other compacting equipment would have a suitable means of access to the easterly area. Part of this area is the bed of the old mill pond which he described as being a local depression. He proposed to follow a regime for the placing of fill beginning with the removal and stock piling of the top soil, trees and vegetation and the compacting of the fill in layers at an appropriate time. The latter point related to the fact that in the spring the mill pond area holds approximately one and a half feet of water but this water disappears shortly. He proposed that the greater part of the area be compacted to 95% Proctor density standard. He indicated that the amount of fill varied from eight to ten feet to shallower depths at the edges. In the vicinity of the proposed house sites, he recommended compaction to 100% Proctor density standard in order to ensure that houses that might be constructed would be on a stable base. He referred to housing developments in Hart Lake where houses had been built on twenty-five to thirty feet of compacted fill using a similar method. He also had given consideration to standards for protecting the area that would be affected by a regional storm in the event one occurred and proposed the use of an interlocking block as a method of preventing erosion at this elevation. This is commonly known as Terrafix.
The witness indicated that having made test holes to a depth of twenty feet and having made analyses of the soil and water levels he was of the opinion that the proposed fill would adequately support a housing development without any problems related to erosion. He outlined his consideration of sewer construction and water run-off indicating that the swale to be provided for surface drainage would improve the stability of the banks on the York Cemetery property as it would prevent ponding which now occurs. He also gave evidence regarding the effect on the water table and it was his opinion that any changes in the water table would be temporary and not of significance. He further gave his professional opinion that the slopes in the area would not be affected by the proposal. With reference to the slopes on the Bathurst Street embankment his position was that the banks are currently stable and the placing of the fill would support the existing fill forming that embankment. With reference to the adjacent slopes his view was that they were within a recognizable, safe slope and were stable. He referred to two types of slippage, one being surficial and the other being deep-seated failure. In his view the addition of the fill at the toe of the banks would tend to reduce the risk of deep-seated failure as it would provide additional support for the area which causes this type of failure.
It was Gray's opinion that if his recommended regime were implemented the existing slopes would be improved and there would be no effect on the conservation of land through erosion, instability or slippage.
On cross-examination it was brought out that the witness had relied on maps which he could not identify for the purpose of calculating the slopes of the York Cemetery lands. It was on this basis that he concluded that the slopes were from 1.3 to 1.5 feet to one foot. He indicated that he had not examined the slopes by walking thereon.
William James, Ph.D., a Professor of Civil Engineering at McMaster University, specializing in hydraulics and hydrology, was called on behalf of the appellant. He dealt with the proposal of the appellant from the point of view of preventing erosion in the event of a regional storm and he concurred in the recommendations made by Gray suggesting that the use of interlocking bricks was more than adequate protection in the circumstances. He also emphasized the benefit of the proposal by providing access in the event of a regional storm to the inhabitants of buildings now requiring access and egress in such an event along Don River Boulevard which would be inundated in a regional storm. He emphasized the problems of both occupants and rescuers and the risk to life arising from the panic situations associated with regional floods. He also endorsed the approach of the plan to place the unsubdivided areas in the ownership of the Authority as this type of ownership assisted the maintenance of the floodways and permits the Authority to prevent blockages from debris and other material which increase the effects of flooding.
In cross-examination it was pointed out that there is a method of egress in an emergency by climbing up a steep bank leading to Audubon Court which provides egress in an easterly direction.
The first witness on behalf of the Authority was Michael J. Pullen, a senior project engineer with the engineering company Marshall, Macklin, Monaghan Limited who established a specialty in geotechnology. The witness had made an examination of the banks on the north and the east of the subject lands. In so doing, he surveyed four profiles from the table land at the top to the property line and beyond. He made over thirty slope measurements on the two banks. He took photographs and a series of soil samples from hand auger probes. In addition he examined the aerial photographs from the year 1960 to the present.
The witness characterized the slopes as having no top soil except in minor limited areas. He explained this by meaning the usual six to eight inches of organic material. In some places he found one to two inches, particularly in the central portion of the York Cemetery slope. He found the cores to be very loose. Both slopes were similar. They were difficult to walk upon and sloughed easily. He found few erosion scars because of the looseness of the soil. He found a mix of soil in most of the test holes. There were no holes showing pure sand. The roots of the trees were exposed on the down slope. In some cases twelve inches were buried on the top slope from sloughed material. He also gave evidence that the boles of the trees were curved or twisted into a convex shape. On the north slope he found storm water gullies from Christine Crescent which lies to the north of Bathurst Park. One gully was four feet deep and the banks of the gully are eroding. His evidence was that the overall surface of both slopes were devoid of tree mulch except for the mulch that had fallen recently prior to the inspection. The photographs illustrated mineral soil under fresh leaves. He also found a wet area on the bank adjacent to Betty Ann Drive which again is to the north of the subject lands. He was unable to identify the source of this wetness suggesting that it might have been discharged from a swimming pool or a ground water source. This source of water flowed down the bank and was gathered at the site of the old mill pond.
The witness indicated that the height of the east slope was 178.5 metres which in his opinion was a fairly high slope having an angle of fifty to sixty degrees. He observed evidence of movement of the upper ten inches of the soil along the east banks and that this movement was being prevented only by the root structure of the trees on the slope. The degree of slope on the north side was 2 to 1. On the east side the slopes were steeper and in his opinion an acceptable slope with reference to stability should not exceed a 2 to 1 slope or a slope of more than 26 degrees. With reference to the easterly boundary and the slopes on the cemetery property the witness prepared four profiles which are illustrated on a aerial photograph filed as Exhibit 26 and are drawn on a plan filed as Exhibit 27.
The most northerly profile which is approximately fifty metres from the northeast corner of the subject lands has an angle of twenty-six degrees on the subject lands and angles of thirty, thirty-nine, sixty and twenty-six degrees on the cemetery property. The sixty degree area is near the crest of the slope. The second profile is approximately fifty metres south of the first profile. It has an angle of twenty-one degrees on the subject lands and angles of thirty, thirty-six and forty-two degrees on the cemetery lands. The third profile was approximately seventy-five metres further south and had readings of thirty-seven degrees on the subject lands and thirty-two and thirty-eight degrees on the cemetery lands. The three profiles ran in an easterly direction. The fourth profile commenced near the beginning of the third profile and ran in a southwesterly direction along the invert of the promontory of a drainage ditch from the cemetery property. This profile had an angle of twenty-six degrees on the subject lands and angles of forty-four, twenty-three, eight, three and twelve degrees on the cemetery lands. This profile extended further into both properties than the first three profiles.
The witness' opinion was that the angles were in many places significantly above the accepted angle of twenty-six degrees by factors that are high enough that they cannot be ignored. The concerns related to the angles are the problems associated with residences both at the top and the bottom of the inclines resulting in ratepayer concern and pressure on municipal councils to perform repair works.
It was the witness' opinion that the proposed placing of the fill on the subject lands had two negative effects. Firstly, he was of the opinion that there would be a slight increase in the ground water level at the toe of the bank. While Gray had stated that the increase would only be temporary and not permanent it was Pullen's opinion that where fill is placed on wet or reasonably wet areas there is a rise in the water table although that rise is difficult to quantify. He did not disagree with the one foot suggested by Gray but expressed a view that such an increase would weaken the soil stress of the banks at the toe. He felt that over the years with frost loosening there would be further erosion and loss of stability progressively up the slope. It was his opinion that while the proposed swale on the subject lands would collect storm waters which would be drawn away from the toe of the bank to a stone culvert and onto the street, if the unstable banks on the cemetery property were left unstablized erosion would occur in the drainage channel.
The witness' second area of concern was in connection with the effect of human intrusion arising from the placing of houses in the proposed subdivision. It was his opinion that unless the area was securely fenced prohibiting children and others from using the banks the vegetation which currently is in a weakened condition would be further destroyed with the result there would be further erosion. His remedy was to reduce the slope of the banks on the cemetery by moving the toe of the bank onto the subject lands or to cut back the top of the bank to reduce the angle. The witness acknowledged that both approaches involve lands owned by the cemetery.
The witness indicated that similar consideration should be given to the gully from Christine Crescent and in default of some action being taken either at the expense of the owner of the valley lands or the owner of the table lands at the top of the gully, the slopes would become void of vegetation and result in a more serious erosion problem.
The witness was asked his opinion regarding the effect of placing of houses on the toe in respect of the downward movement of soil. It was the witness' opinion that eventually all soil that is moving down the face of the slopes would end up at the bottom of the slopes. If this remains unchecked, a stable area will develop at the bottom of the slopes and encroach upon the properties supporting the houses and will fill up the drainage ditch creating maintenance problems related to difficulity of access and costly maintenance.
The witness was asked his opinion on the potential for a major spontaneous failure on the slopes. The witness saw no evidence of such a potential in photographs although the photographs did disclose many examples of shallow failure where two feet of soil had moved down the slopes as much as one half of the distance. This evidence occurs on the cemetery slopes.
The witness concurred that the factors affecting soil stability were the addition of moisture, the loss of vegetation and human action. It was the witness' opinion that the proposed filling would affect the toe of the bank and create a potential which would affect the upper parts of the bank in the long term. It was his opinion that the short term risks were small. Thence it was his opinion that the planning exercise should consider periods of at least ten to twenty years and that in that period of time he could foresee maintenance problems for landowners on the proposed subdivision.
On cross-examination counsel for the appellant raised an issue of the distinction between tolerant and intolerant hardwoods. The witness was not familiar with this distinction. With reference to the significance of tree cover, the witness admitted that assessment of slopes is made on the assumption that the slopes are totally devoid of trees. With reference to small vegetation on the slope the witness was of the opinion that such a matter was a factor but its existence was not sufficient to assess a slope as being stable. The witness was of the opinion that the root system of the trees was a significant aspect of the stability of the slope and pointed out in this regard that many of the roots on the upper sides of the trees on the slopes are exposed for distances of approximately four inches and that there is an appearance of stairs down the slopes which indicates there has been surface slippage from the upper side of the tree to the lower side of the tree.
With reference to the interpretation to be placed on the curves shown in his profiles the witness was unable to give any rate of movement as he had not made the necessary calculations for this purpose. He again emphasised that he felt the slopes were unstable because they exhibited bank-top recession and rotational slumps at the bottom.
With reference to the effect of an increase in the ground water level the witness pointed out that the resultant change would create a ground water level higher than the existing water in the mill pond. With reference to lack of smaller vegetation the witness explained that it was in part caused by higher, stronger vegetation and in part by slumping which probably occurred in the sixties' but the witness was not prepared to give any opinion on the strength of the existing tree cover. He pointed out that shallow rooted trees such as beech, which are present, are not as effective in preventing erosion as species with deep roots which are more likely to have an effect on deep-seated rotation. With reference to the northerly slopes, the witness admitted that the problems relate primarily to the top of the slope and remedial action should be taken in respect of the properties of the landowners at the top of the slope. He also agreed that the slope was not as unstable as the York Cemetery slopes.
With reference to Gray's evidence that the placing of the fill would have a positive effect on deep-seated failure, the witness indicated that there was no evidence that this type of failure may occur. With reference to the storm water removal and the swales, the witness agreed that the problems that he outlined in this regard could be dealt with in the grading aspects of subdivision control. He did disagree, however, with the placing of sod on thirty degree slopes and indicated that sod would only be acceptable on areas of a two to one slope.
The second witness on behalf of the Authority, was Janice Jean Doane, a biologist who has been working in the Planning and Environmental Section of the Authority on environmental assessments, water management and lakeshore studies. It may be noted that the witness was neither a botanist nor a forester but the expert evidence that she purported to give to the tribunal was in these two fields. The witness, in part before and in part after the decision by the Authority that was the subject of the appeals, attended at the property and examined the tree and other vegetation growth not only on the subject lands but on the slopes to the north and to the east of the subject lands. The witness described the vegetation, including tree growth on the subject lands and the adjacent lands, indicating that the vegetation ranged from a manicured or groomed vegetation in the vicinity of the existing residence to a field community in areas in the southerly part of the proposed subdivision to a quasi-aquatic environment in the area of the old mill pond and to a forested environment on the slopes to the north and the east of the proposed subdivision and area to be filled. The witness took no serious issue in connection with the first two categories. With respect to the third category, the witness referred to the report of considerable magnitude referred to as the "Environmentally Sensitive Area Study of 1982" by the Authority. The purpose of the report was to designate within the area under the jurisdiction of the Authority areas to be protected or preserved based on environmental considerations.
In the witness' opinion the site of the old mill pond fell within the standards of the study as a number of sedge grasses found in this area were rare in the area of Metropolitan Toronto. With reference to the forested areas the witness categorized it as a rarity in connection with the finding of red oisure dogwood and hop hornbeam growing in the forested areas, particularly, those beyond the boundaries of the subject lands. The rarity of these species was related to the metropolitan community and was not based on any provincial standard. There was no evidence to suggest that the species in themselves were what might be termed an endangered species.
With reference to the forested slopes adjacent to the subject lands the witness was concerned that the removal of the remaining tree cover on the subject lands would expose the tree cover on the adjacent slopes to die back resulting from sunscald and windthrow. The latter effects result from the exposure of trees that had not been previously exposed to additional sunlight and wind with the removal of adjacent trees. The witness also expressed concern regarding change in growth patterns and potential for disease that might result from changing ground water elevations. In this regard the witness admitted that it would be "hard to say" the extent that these changes would occur.
The witness dealt with the effect of human activity on the banks of the land adjoining the north and east of the subject lands and expressed the opinion that human activity would deteriorate the vegetation on the slopes by trampling.
In cross-examination the witness admitted that although the report on environmentally sensitive areas identified such areas within the jurisdiction of the Authority, the subject lands were not included in the report.
The witness was also cross-examined with respect to whether the species of the trees on the slopes were tolerant or intolerant hardwoods, and the witness purported to conclude that tolerant species are a stronger, more lasting species than the intolerant species, the remaining species were tolerant, the species that were being removed were intolerant and a desirable result would occur.
John William Maletich, the Manager of the Development Control Section of the Water Resources Division of the Authority, who is responsible for a wide area of administrative and enforcement activities of the Authority related to official plans, zoning, building, environmental, Niagara Escarpment and Toronto waterfront matters, gave evidence outlining the policy of the Authority. He reviewed the number of applications that had been made in respect of the subject lands and indicated from the point of view of control of flooding, the administrators of the Authority had been satisfied that matters of control of flooding had been met by the appellant.
However, with regard to other matters under the jurisdiction of the Authority the witness referred to background material relating to the working relationship between the Authority and the municipalities in York, Durham and Peel areas respecting consideration of official plans. A report numbered 13/76 of the Executive Committee of the Authority prepared in 1976 was filed as Exhibit 32 and the following principles relating to official plans and approval of plans of subdivision and enactment of building by-laws are contained in that report:
2. Conservation aspects of Official Plans
The following statements be adopted as desirable for inclusion in Municipal Official Plans:
- River valleys, ravines and shorelines are non-renewable resources which Council intends to protect from development inconsistent with their natural character. Council also recognizes that river valleys and shorelines are areas of flood and erosion hazard. Accordingly, the use of these lands for any purpose should be based on established design flood criteria, erosion control considerations and an effort to perpetuate the benefits bestowed by nature;
- Council undertakes to work with The Metropolitan Toronto and Region Conservation Authority to plan for the improvement, conservation and protection of valley lands and the Lake Ontario shoreline within the municipality's jurisdiction;
- Council, in conjunction with The Metropolitan Toronto and Region Conservation Authority, will define the physical limits of the river valleys within their area of jurisdiction;
- Council will pass by-laws prohibiting development or the placing of fill in areas regulated by The Metropolitan Toronto and Region Conservation Authority and described in the Schedules to Ontario Regulation #735/73, as it may be amended from time to time, or a Successor to that Regulation;
- Council will amend existing by-laws having effect in areas regulated by the Authority, as defined in Recommendation #4, in order that development will not proceed without the approval of the Authority;
- Council will use all available means to improve storm water management in order to minimize downstream flooding, pollution and erosion. Council will establish its criteria on the basis of recommended criteria by the Ministries of Environment and Natural Resources, and The Metropolitan Toronto and Region Conservation Authority;
- Council shall consult with The Metropolitan Toronto and Region Conservation Authority and shall then designate water-courses as major, intermediate and minor. The classification will be based on the drainage area of the watercourse, and will be used for the purpose of defining responsibilities for control and remedial works. Generally major water-courses will be those draining over 2,000 acres, intermediate water-courses will be those draining between 1,000 and 2,000 acres; and minor water-courses will be those draining less than 1,000 acres;
- Council, recognizing that the development of lands adjacent to river valleys can have a detrimental effect upon the river valley, wishes to provide an adequate buffer for valley lands. Therefore, Council will establish a development setback of at least 100 feet from top of bank for the purpose of regulating building or the placing of fill adjacent to those valleys classified as major or intermediate;
- Council will establish a development setback of at least 40 feet from top of bank for the purpose of regulating building or the placing of fill adjacent to those valleys classified as minor;
- Council will not permit any building or placing of fill in any valley classified as major or intermediate, or within a minimum of 100 feet from the top of the bank of such valley, unless such building or placing of fill enhances such valley as a non-renewable resource;
- In considering development applications, Council will use powers under Section 33(4), Section 35(a)(2) of The Planning Act to prevent unnecessary changes in the character of the predevelopment landscape, including topography, vegetative cover and drainage;
- Council, in cooperation with The Metropolitan Toronto and Region Conservation Authority, will establish criteria for the identification and preservation of woodlots, wetlands and other environmentally sensitive areas, and further in this connection
That The Municipality of Metropolitan Toronto, the Regional Municipalities of Durham, Peel and York be requested to include the applicable statements in their Official Plans now being prepared and that the area municipalities within the Authority's area of jurisdiction be requested to support the statements and include those which are applicable in their Official Plans, and further
That copies be forwarded to the Ministries of Natural Resources, Housing, Environment, Transportation and Communications, and Treasury, Economics and Intergovernmental Affairs, for their information and comment. . .
Consequently, upon receipt of the comments of Robert John Bower, Commissioner of Planning for Metro, recommending the non-approval of the proposed plan of subdivision, upon the ground that the proposed plan should be refused as the land should be acquired for park and open space, he concurred with the position and consequently, in his final report to the Executive Committee of the Authority, dealing with the application he recommended against the permission requested and in the report, after referring to the unresolved issue of whether Metro would consent to the placing of fill on the widening of Bathurst Street, Bathurst Street itself and the sewer on the subject lands the report, filed as Exhibit 33 concluded at pp. 3 and 4,
This subject area of the Don Valley has been identified in the Authority's Watershed Plan as a "well-defined valley". Well-defined valleys are those downstream parts of the watercourse where the valley is deeply incised, relatively narrow and very susceptible to severe flood flows.
In general terms, the well-defined river valleys include river mouth marshes and the lower reaches of the major streams. The well-defined valleys have the following characteristics:
- the valley side slopes are steep and are often tree covered,
- the valley walls may be unstable,
- the floodplain usually has the appearance of being easily distinguished visually from the valley wall,
- the floodplain, as defined by the Regional Storm will, in many instances, occupy the entire valley floor. Exceptions, however, will occur where valley formation processes or the activities of man have created a valley floor which lies outside the Regional Storm floodplain.
The policies and programs in the Watershed Plan which apply to the well-defined valleys have as their overall thrust, the retention of well-defined valleys from top of slope to top of slope as natural units.
Under Ontario Regulation 170, the Authority is empowered to prevent the placement of fill where the fill will affect the control of flooding, the conservation of land or pollution.
It is staff's opinion that although the applications before the Executive Committee today do not affect the control of flooding to any great extent, they do affect the conservation of land.
The witness then referred to what he called the Authority's mandate defining it in the terms of the objects of a conservation authority as they are set out in section 20 of the Conservation Authorities Act and the powers of a conservation authority set out in section 21 of that Act. He indicated that pursuant to these objects and powers the Authority has developed ten programs and filed as Exhibit 34 a copy of the Watershed Plan of the Authority outlining these programs, some of which are more fully expounded in other documents. The witness indicated that there was no longer concern regarding flooding, erosion or sediment control, or storm water management and the only program involved in the consideration was the matter of the land management program. Reference was made to p. 22 of Exhibit 34 where the program is referred to as the "Management of Resources". The plan indicates that river valleys, both well-defined and ill-defined, are designated as one of the resources and the witness gave the reason that such areas are the only areas in the metropolitan area sustaining tree and wildlife populations which can be treated as open space for public use. At pp. 22 and 23 the following concepts are noted in respect of this program,
The conservation management of these resources, as set out in the Plan, recognizes:
- the limitations of the resources to accommodate use and development;
- the role of the area within the Authority's jurisdiction in accommodating municipal and Provincial growth objectives;
- the requirement to protect the community from the hazards of flooding and erosion;
- the role of resources in contributing to a safe and healthy life for the community;
- the role of other public jurisdictions in contributing to the management of resources in the region.
The witness explained that the reference to "growth" in the second principle refers to the use of valley lands for sewers and arterial roads and other public use. He indicated that the policy was to protect the valleys and to prevent development from crest to crest in order to provide a safe and healthy life for the inhabitants of the metropolitan area. With reference to wildlife in heavily treed areas the witness indicated that the respondent had no information regarding wildlife and was not concerned regarding this particular aspect in respect of the subject lands. However, the subject lands, with other protected river valleys, are the last vestiges of open space in the metropolitan area except in northeast Scarborough, and are subject to pressures for construction and alteration of watercourses. Accordingly, there is a significant role to be played with other jurisdictions in their programs.
The witness pointed out that the Authority had two methods of achieving its objectives, namely, acquisition and regulation. Figure 4 attached to Exhibit 34 illustrates a number of lands designated by the Authority for acquisition. Lands coloured "blue" are designated as hazard lands suitable for acquisition and lands coloured "yellow" are designated as conservation lands that are suitable for acquisition. The subject lands are designated within these categories on Figure 4.
With reference to regulation the witness referred to Regulation 170 of the Revised Regulations of Ontario R.R.O. 1980 and the relevant schedule which was filed as Exhibit 6 pointing out that on this exhibit the tops of the banks are shown and the areas between the red lines constitute a well-defined valley in which the Authority wishes to avoid the impact of urbanization.
The witness again referred to Exhibit 33 indicating that the reason for the recommendation was that the subject lands are one of the last remaining vestiges of open space in Metropolitan Toronto. He admitted that other areas are still available but the respondent is attempting to preserve such areas. When asked regarding the effect of granting the permission on the policies of the Authority and on conservation of land the witness expressed the view that such would create a conflict with the policies and have a detrimental effect on the conservation of land. There would be a removal of the vegetation which would have to be restored and result in an unnormal situation. In preparing sites for homes, the proposal would result in the elimination of a natural resource. In addition, the granting of the specific application would result in other pressures for development. He referred to a particular application in the past in which the result was the purchase of the land in respect of which an application was made. In the witness' view the residential development would have an impact on the natural resources by depleting the open space characteristics of the river valley. Reference was also made to the pressure in connection with properties on the west side of the river which had been dealt with and ultimately after an appeal, permission for development was refused. The witness referred to several other instances in this, and other areas regarding pressure for residential development in flood plains.
The witness was asked his view of the phrase "conservation of land" and he indicated that from a staff point of view the phrase involved a return to natural conditions.
On cross-examination the witness indicated that it was the policy of the Authority to retain the existing use of all land in the river valleys until such time as the Authority chose to acquire a parcel on an individual basis, with a long range plan of turning the river valleys into open space for public use. He further admitted the requests of North York that the subject land be purchased and that an indication had been made to the appellant that purchase would be considered as long ago as 1976 but the witness indicated he had no knowledge of any action being taken to evaluate or acquire the subject lands.
Filed during this cross-examination as Exhibit 41 was a report dated June 11, 1981 of the planning staff of North York in which it was indicated that a development application of the appellant would be deferred until the Authority acquires the land. Exhibit 42 indicated the position of the Metro Council that the land should stay in a natural state.
The element of an outlet being provided for the residents of Don River Boulevard was raised with the witness who indicated that this aspect had not been taken into consideration in making the decision but admitted in his opinion that the proposed streets in the proposed plan of subdivision would be an improvement and the provision of the egress without public expenditure was "better".
On re-examination the witness indicated that there are existing flood protection measures for the residents of Don River Boulevard such as early warning systems and pedestrian access routes.
Robert John Bower, Planning Commissioner for Metro, was called on behalf of Metro. His evidence related to the position of the council regarding the application for approval of the plan of subdivision and amendment of the zoning provisions, including the official plan, and was that such should be refused because of lack of conformity with the objects of Metro and the Authority. The reason for this policy is the strong role attributed to the river valleys in the formation of parks and open space systems for the residents of Metro Toronto. This policy was established in 1954 and is now a major policy with entire systems having been developed on the Etobicoke, Humber, Don and Rouge Rivers and Highland Creek. Reference was made to the official plan and other documents indicating that the policy was to retain the river valleys, from crest to crest, in a natural state. The appellant raised no issue as to the need of amendments to permit the proposed plan of subdivision.
The witness indicated that no request had been made to Metro, as owner, for the placing of fill on Bathurst Street or on the sewer easement. In passing, it may be noted that while the title to Bathurst Street and its widening was admitted, nothing was produced in evidence to show that Metro had any control, qua owner, over the site of the sewer.
The witness was asked his opinion as a professional planner of the subject lands in the context of the official plan and his concept of the term "conservation of land". He stated that in his opinion they are a natural resource worthy of preservation. The reasons for such preservation in his opinion were the value of the slopes for flood plain protection and as natural areas and that the entire valley was worth protecting. He submitted that development of a strip of such lands for residential purposes is detrimental to the whole valley as a natural resource. In his opinion the benefit of creating building lots was outweighed by the effect on the entire valley. As a planner he was concerned that the proposal created a perimeter problem in a sensitive area, although he admitted the flood prevention aspect no longer appeared significant. With reference to Don River Boulevard, he felt the access should be provided over lands lying to the north of that subdivision rather than the proposed subdivision.
On cross-examination counsel for the Authority sought further views as to the meaning of the phrase "conservation of land" and the witness indicated that conservation does include active measures and is different from preservation in a wilderness state. The witness suggested that preservation was a conservation measure that can be used to preserve natural resources. He also stated that in his opinion the continuation of private uses was consistant with the term.
In reply, the appellant called John M. Robinson, a professional forester who has spent many years in various aspects of forestry and presently is engaged in biomass work and who had provided service to the subject lands over a period of years including assessment of the river banks following re-alignment by the Authority and the acquisition of imported species for planting on the subject lands. He was asked his professional opinion regarding the condition of the roots of the trees on the cemetery slopes and he stated that this was not an indication of slippage of the topsoil but was the natural method of growth on a slope. He referred to buttress roots which grow out of the root collar, i.e., the junction of the roots and the bole, and indicated that it was not unusual for such roots to be observed on the downside of a tree. Frequently such roots come out and go down with the secondary or tertiary root system. In the photos produced (Exhibits 24 and 25) the roots were shown as coming out at the same elevation and turning down which he categorized as a usual situation. On the upside, in dry conditions, buttress roots are usually below the surface at the same elevation as the other roots. His conclusion was that the roots were in a natural and healthy condition and that there was no serious evidence of root damage caused by slippage in the photographs.
Robinson was also asked his opinion regarding the effect on the trees growing on the slopes that would be created by the removal of the trees on the subject lands and he stated there would be no or a very slight impact because the trees on the subject lands that had been planted on the old mill site consisted of poplars, maples and spruce and when removed could be replaced in time with more suitable species. In his opinion the damage from windthrow to the trees on the slopes would be slight because the trees on the slopes are growing, by reason of growing at a higher elevation, in an open environment and have been subjected to and developed resistance to the winds. They are stronger than if they were protected and would not be affected by the removal of the front line of trees. He indicated that trees had been removed in the past in connection with the Bathurst Street widening, from the construction of the sewer and from the re-alignment of the Don River by the Authority in the fifties' and sixties', leaving the trees on the slopes to have established a resistance against the wind and the sun.
The witness was cross-examined in respect of the curvature of the bole of an ash tree and he attributed the condition to a reaching to light rather than slippage of the soil. In the witness' opinion the trees would have slid down the hill in the event of slippage rather than bend. He disagreed that the trees indicated downslope slippage. He was cross-examined further on the possible disease and sun damage and his opinion was that the trees on the slopes would not be subject to these factors because they have developed cellular structures to prevent such deformities through past exposure. The density of the trees to be removed was not sufficient to create a need for protection and removal would create no difference.
With reference to human activity, the witness agreed that people and trees on slopes do not go together and assumed that a subdivision would increase the use of the slopes. In passing, none of the witnesses compared the use, illegal as it might be, of the residents of a subdivision with that of the public generally using a public park.
The witness also indicated that there was good regeneration on the cemetery slopes but such was not the case on the northerly slopes.
Brian Roderick Gray was recalled for reply evidence. He characterized the slope movement described by Michael J. Pullen as being "creep" -- a natural phenomenon resulting from freezing in winter and thawing in the spring with the earth returning to a different location after the thaw and indicated that where such a process occurs at an accelerated rate there is a natural consequence, namely, mounds of earth at the toe of the bank. There was no such evidence in the field and the witness' opinion was that the movement observed by Pullen was nothing more than the normal application of this principle with temporary dislocations of the topsoil. In assessing the stability of a slope it was not usual to take this type of movement into consideration. He referred to bare spots on the top of the slopes and categorized these as local movements of a larger volume of soil. In his opinion the maturity of the stands of trees, the density of cover of such trees and the absence of vigorous grass root systems created such areas but they should be discounted in assessing the stability of the entire slope. In his opinion they do not create a risk to property or life at the bottom of the slope. Such a risk would not be created by the placing of fill at the bottom and in his opinion, if the permission were granted, the slopes would be safe.
With reference to Pullen's evidence regarding the water table and the risks of an increase of one foot therein, Gray's opinion was that such would be temporary and in the long term with the impervious additions to the land such as buildings and asphalt streets and driveways coupled with increased drainage through the sewers and drainage swales, there would be no long term increase in the water table.
He also gave evidence that the slopes of the proposed outlet for the residents on Don River Boulevard in the event of a regional storm had a slope of twenty-three per cent as contrasted with six per cent for North York roads and the depth of flood of that street in a regional storm is six and one-half to seven feet.
Counsel for the appellant submitted that the main issue in the case is the meaning of the term "conservation of land" and that it relates to erosion and slippage but does not permit the denial of an application for permission to place fill on the ground that the conservation authority wishes the land to remain in a natural state.
Reference was made to two cases of this tribunal that had referred to the term. Firstly, part of the following quotation at pp. 22 and 23 of the 1978 case of Shell Canada Limited v. Central Lake Ontario Conservation Authority was made:
In these two aspects the proposal is a very significant enhancement of the control of flooding or of erosion which is one of the recognized aspects of the conservation of land. There was some argument and evidence in respect of the return of the subject lands to a state of nature or to a less commercial use. This tribunal has indicated on a previous occasion that it does not consider that the phrase "conservation of land" means retention of land in a state of nature. If such is the case it cannot include a meaning of returning land to a state of nature and in the opinion of this tribunal such an objective in refusing to issue permission is outside the proper considerations of a conservation authority.
Reference was also made to the following quotation from the 1979 case of Farkas v. The Halton Region Conservation Authority at p. 41:
The fourth reason related to the fact that the swamp had been recognized as an Environmentally Sensitive Area in a draft official plan and it was suggested that the change of a swamp to a residential area fell within the concept of "conservation of land". This tribunal has considerable doubt that the phrase "conservation of land" is synonymous with the maintenance of a natural state or the creation of conformity to an official plan. However, it is not necessary to rely on this aspect of the matter.
It was submitted that the thrust of these cases is that the considerations that should be made under this subject should be related not to land use planning or policy making but to a scientific analysis of the capacity of the particular property to hold or bear the proposed use. It was admitted that if such analysis showed no capacity, it would be a complete determination of the matter. Turning to the facts it was submitted that the motives of the respondents were patent. Through their actions they sought to obtain a common objective of keeping the subject lands in a state of nature and their position was based on land use planning and policy making. It was submitted that refusal should not be based on such a motive.
Counsel for the appellant submitted that there are four areas where the effect of the proposed placing of fill should be considered in determining whether the application affects the conservation of land, namely,
- The Bathurst Street embankment.
- The internal streets and lots.
- The effect on the slopes of adjoining lands on the north and east.
- The effect of the fill on trees.
In the first area it was submitted that there was no evidence to distinguish this embankment from the existing embankment of Bathurst Street. The specifications and resulting elevations are similar and accordingly, permission should be forthcoming.
Regarding the second area it was submitted that there should be no concern as the land to be filled did not touch any river or other body of water and with standard engineering practice a sturdy and stable embankment can be produced. It was submitted that there was no evidence to rebut that position and that the evidence of Dr. James referred to the effect of a regional storm and such is not applicable as this area is above that elevation. If any of the embankment is in such a flood plain the velocity would be 3.6 feet per second and the proposal contains floodproofing to withstand such flows and there should be no concerns as to erosion. It was submitted that there was no evidence submitted to even suggest a concern regarding erosion.
With reference to the third area, it was admitted that there was a conflict of evidence. It was submitted that the evidence of Gray was based on a full soil analysis including the taking of bore samples. His evidence was that there is no risk of instability. Pullen agreed that there was no risk of spontaneous deep-seated rotation on the slopes.
It was submitted that under Regulation 170 the test is whether the fill will affect the conservation of land and hence the prior existence of a problem (if one exists) is not grounds for refusal unless a causal relation is shown. It was submitted that the evidence produced did not require a decision to be made on this narrow ground as the evidence was consistent with a finding that there was no problem to be addressed. It was submitted that the major risk or concern would be deep-seated rotation and that both expert witnesses agreed that no such problem exists.
It was submitted that the difference in the expert evidence relates to tiny unmeasurable surface movements reported by Pullen. Gray characterized the examples of this as typical occurrences particularly on slopes bearing mature trees with a dense canopy preventing the growth of light vegetation requiring sunlight. Pullen's evidence was that the result of such movements was anger or annoyance of private property owners and gave no evidence of injury to people or property resulting therefrom. With reference to Pullen's evidence, keeping in mind that he was not a biologist or tree expert, that the trees that he observed evidenced such a movement, his evidence was inconsistent with the evidence of Robinson, an expert forester, who indicated that the evidence referred to by Pullen was not evidence of slippage but merely the natural growth pattern of trees on slopes.
With reference to Pullen's concern regarding an increase in the water table, Gray's evidence in reply showed this, if it occurred, to be temporary and in a matter of two or three months it would return to normal or lower by reason of the removal of the pond and its retention effect and the creation of new drainage systems.
It was submitted that the proper assessment of Pullen's evidence should be that there is a potential for annoyance to residents but that it is not sufficient to reject an application on the basis of possibility. There should be a probability with a real and significant effect and not an inconsequential effect. In this regard reference was made to the 1976 case of Toyotatown Limited v. Upper Thames River Conservation Authority where this tribunal held that the standard of proof in respect of applications was the balance of probabilities as a result of the use of the word "will" in the clause of the regulation dealing with applications as contrasted with the use of the word "may" in the provision in the Act authorizing the making of the regulation.
Notwithstanding such onus, it was submitted that the evidence justifies a finding that there is no risk greater than an annoyance to landowners and no danger to people or property.
It was mentioned that notwithstanding four years of negotiations the issue of conservation of land was only related to the appellant after the decision of the Authority.
With reference to the fourth area, namely, trees, counsel for the appellant made submissions under two heads. With reference to factual considerations, Bousefield's evidence showed that while trees were being removed from the site of the pond and on the proposed lots, more valuable trees were not being removed in areas that are not being developed, particularly along the river. Also Robinson evidenced that the trees being removed were less mature and scattered.
Secondly, on the issue of jurisdiction of the Authority over trees, it was submitted that while clause 21(o) of the Conservation Authorities Act authorizes authorities to plant trees on Crown land there is no jurisdiction over trees on private lands. It was submitted that this tribunal distinguishes between the administrative and legislative jurisdiction of authorities and that it should be held that the jurisdiction over private land is narrower than its jurisdiction over the land acquired by authorities. It was submitted that in regard to fill applications, an authority is restricted to the three tests, i.e. control of flooding, pollution and conservation of land and its jurisdiction goes no further and cannot extend to the prevention of the removal of trees which have nothing to do with the basic capacity of land to hold fill or other developments. It was submitted that the evidence of Miss Doane fairly outlined the respondents' position that the objective was the retention of the area in its natural state. It was submitted that there is nothing in the Act to allow an authority to prevent the cutting of trees and an undesirable result would occur if it were held that an authority could do so on an application as applicants would remove the trees prior to making applications.
It was submitted that the programs adopted by a conservation authority have no relevance in considering the programs of private landowners and applications should be considered only on the three tests and that the tests cannot be expanded by the Authority as was held in the 1977 case of United Jewish Welfare Fund of Toronto v. The Metropolitan Toronto and Region Conservation Authority at p. 38,
Further, there is implicit in this arrangement, the principle that the program, per se, is not a legislative instrument and cannot affect rights of landowners whose lands have been included in the program.
Consequently, if the program of the Authority includes the land of a private landowner it cannot merely by creation of the program affect the right of the landowner and it could only do so through its legislative jurisdiction.
Lastly, counsel for the appellant referred to the benefit of creating an egress for residents of Don River Boulevard in the event of a regional storm. Reference was made to the 1983 case of Walley v. South Lake Simcoe Conservation Authority where the principle was enunciated that egress should be over public lands. Amelioration of this real hazard at private, i.e. non-public, expense should weigh in favour of granting the permission.
In summation it was submitted that the obvious intention of the respondents was to sterilize the land of the appellant in a natural state and the Authority has no jurisdiction to do so.
The submissions on behalf of the Authority restricted the refusal of permission to the issue of conservation of lands and it was submitted that the application affected the conservation of land in two ways, namely, that the proposal would affect the potential and existing instability of the banks of the York Cemetery lands and secondly, the proposal constituted a loss of a portion of the river valley which at present is in a natural state.
Counsel for the Authority submitted that the phrase "conservation of land" should be afforded a broad definition so that it includes in addition to erosion and slope stability, the preservation of the natural resources within a conservation authority's jurisdiction. It was submitted that it should be interpreted in the light of the objects of section 20 of the Act which creates the jurisdiction of conservation authorities, as contrasted with section 21 which provides the powers of a conservation authority. It was stated that the object of the Act should be the guiding light. Counsel then referred to section 28 which gives a conservation authority the jurisdiction to make regulations, which regulation of the Authority appears as Regulation 170, R.R.O. 1980 and deals with three distinct areas, namely, control of flooding, pollution and conservation of land.
It was submitted that while the Authority has jurisdiction over a number of watersheds, its regulation is applicable only to areas in which it has concern, namely, the river valleys with reference to the concerns noted in section 2 of Regulation 170 which reads,
2. The areas described in the schedules are areas in which, in the opinion of the Authority, the control of flooding or pollution or the conservation of land may be affected by the placing or dumping of fill.
It was submitted that in finding the object of the Act, reference should be made to the objects provided for conservation authorities in section 20 which reads,
20. The objects of an authority are to establish and undertake, in the area over which it has jurisdiction, a program designed to further the conservation, restoration, development and management of natural resources other than gas, oil, coal and minerals.
It was pointed out that "conservation of land" is not defined in the Act. Reference was made to definitions in dictionaries having meanings related to preservation, official care and protection of natural resources such as a forest, keeping from harm, decay or loss. Also the term "natural resources" is not defined. Reference was made to the case of Rosenberg et. al. v. Grand River Conservation Authority et. al. 12 O.R. (2nd) 496 in which the Court of Appeal refused an application for an injunction to prevent the authority from disposing of part of the Elora Gorge which it had acquired. Specific reference was made to p. 509 where it was noted that "conservation purposes" should not be given a narrow meaning and it was submitted that such an approach should be taken in regard to the regulation.
It was submitted that section 10 of the Interpretation Act requires this approach. Also the section requires an interpretation of the regulation as a remedial provision. Reference was made to the evolutionary approach of the Court of Appeal and it was submitted that the phrase "conservation of land" although it was not the phrase under consideration in that case, should be given a similar treatment.
To illustrate the evolution of the Act, counsel referred to legislation enacted in 1946 and reference was made to the preamble, (which should more properly have been referred to as the name of the Act) where the purpose of creating conservation authorities was said to be the "Conservation, Restoration and Development of Natural Resources, other than Gas, Oil, Coal and Minerals and for the Prevention of Floods and of Water Pollution" indicating that the three areas of concern were recognized by the Legislature prior to Hurricane Hazel. It was pointed out that this statute did not contain a power to regulate private land but primarily authorized authorities to proceed with schemes for the purposes. In 1956 a power of regulation was introduced in the following words:
- -- (1) Subject to the approval of the Minister, an authority may make regulations applicable in the area under its jurisdiction,
- restricting and regulating the use of water in or from rivers, streams, inland lakes, ponds, swamps and natural or artificially-constructed depressions in rivers or streams;
- regulating the location of ponds used as a source of water for irrigation;
- providing for the appointment of officers to enforce the provisions of any regulation passed under this section.
It was admitted that while the legislation created three regulation making powers the legislative power would not have authorized the regulation under consideration in this case. Without referring to all the amendments of intervening years counsel submitted that in 1968 the Act was re-enacted providing the object section and enlarged the regulation making jurisdiction to its present scope.
It was submitted that the object of preserving natural resources has been consistent throughout the amendments. By legislative evolution and the expansion of regulation making authority it was submitted that the proper interpretation of the words "conservation of land" is preservation. He argued that the expansion of the regulation making power warrants a broad interpretation. He pointed out the constant retention of the powers of conservation authorities over the, Conservation of natural resources through the amendments. It was submitted that the constant broadening of the mechanisms to enforce the objects which have remained stable indicates that a broad interpretation should be placed on the legislation and the mechanisms.
It was submitted that conservation of land means the preservation of those natural resources which have been identified by the Authority in its area of jurisdiction. The Watershed Plan identifies these and includes well and ill-defined valleys and they should be preserved not only if they contain a hazard but by reason of their natural environment itself.
Turning to the evidence, counsel for the Authority submitted there was a significant conflict between the expert geotechnical engineers. He suggested the methodology adopted by Gray was weak as he failed to take as extensive field data as Pullen and relied on maps for slope information. He had failed to research aerial photography back to 1960 as had Pullen or take auger tests as Pullen had taken. He relied on the evidence of Pullen regarding the accumulation of soil on the upper side of the tree roots on the banks and the exposure of tree roots on the lower side. He also questioned Gray's categorization of the evidence of actual denuding of trees as localized slumping and his disregarding of this evidence of actual slippage. He also pointed out that on cross-examination Gray admitted that the slopes were greater than the angle of repose and without anything further such a slope is unstable.
Counsel suggested that with additional moisture, removal of vegetation and human intrusion the additional factors created a greater risk. He submitted that both witnesses agreed that increased moisture and decreased vegetation would have a negative impact and this would be increased by human activity.
With reference to the submissions of counsel for the appellant that Pullen stated that the risk of major spontaneous movement was high, counsel for the respondent submitted that the evidence of both was consistent with reference to deep-seated movement and both agreed that such risk was low and that rotational fractures higher on the bank is more likely to occur and that Gray admitted that the placing of fill at the toe of the bank would not reduce this risk. He also pointed out that Robinson admitted that human intrusion would be adverse.
With reference to the conflict between the evidence of Miss Doane and Robinson regarding the effect of removal of trees on the subject lands counsel submitted that the evidence that there was a risk of sunscald and windthrow should be accepted. He referred to the evidence of Pullen that additional moisture would have a negative effect on the vegetation.
He submitted in conclusion of this point that all of the expert evidence indicated that it is extremely questionable that the existing stability of the York Cemetery banks could be maintained and it should be found that the placing of fill on the toe of the slope would have an effect on conservation of land.
On the issue of onus, it was submitted that the onus should be on the appellant to show that the proposal would not affect the conservation of land and on the evidence it should be found that the proposal would create instability of the York Cemetery banks and accordingly, the appeals should be dismissed.
On his second point of preservation of the natural resources, counsel for the Authority submitted that there was evidence, particularly of Miss Doane to the effect that there were regionally rare species of trees and shrubs, that showed that the proposal would destroy the natural condition of the part of the valley involved, that the phrase "conservation of land" is broad enough to include the preservation of natural resources in a state of nature, that the failure to include the subject land in the list of environmentally significantly areas was an oversight and the Authority is within its legal powers in attempting to preserve the natural resources of the subject lands.
Counsel for Metro submitted that the area proposed to be used is part of a significant natural resource that should be acquired, that the intent is to sterilize the land but not without compensation, that a policy should be developed to achieve that objective and if such could not be effected, the land should be acquired. He submitted that the approach of the Authority is in accordance with the Metro Plan.
Counsel pointed out six areas that would have to be achieved to make the appellant's proposal effective, namely,
- amendment of the Official plan;
- amendment of the zoning by-law of the City of North York;
- final approval of the plan of subdivision;
- approval of council of the City of North York to assume the two streets shown on the proposed plan;
- the consent of Metro to encroach on the sewer easement; and
- the consent of Metro under subsection 97(5) of the Municipality of Metropolitan Toronto Act, R.S.O. 1980, c.314 to the appellant's road intersecting a highway in the metropolitan road system.
It was pointed out that none of these matters had been achieved and that both North York and Metro had indicated that they would not grant the required approvals. Further no requests to his client to place the fill on its highway right-of-way or sewer easement had been made and the evidence indicates that such would not be forthcoming.
Counsel endorsed the position of counsel for the Authority. He submitted that where words are not defined in an Act they are to be given their plain or ordinary meaning within the context of the Act. He referred to the Oxford Universal Dictionary which defined "conserve" as a verb as,
- to keep in safety or from harm, decay or loss, usually to preserve its existing state from destruction or change.
- to preserve in being, to keep alive.
- to make into a conserve, to preserve in sugar, etc.
He also referred to a Canadian dictionary published in 1967 and known as The Gage Senior Dictionary giving the following meanings;
- keep from harm or decay; protect from loss or from being used up.
- preserve (fruit) with sugar.
Counsel discounted the latter meanings of both definitions. He referred also to the definition of "conservation" in the latter dictionary,
- a preserving from harm or decay, protecting from loss or being used up, the conservation of natural resources.
- the official protection and care of forests, rivers, etc.
- a forest, etc. or part of it under official protection and care.
He pointed out that the definition uses the words "preserve" and "natural resources" and he submitted that the major rivers or valleys in Metro Toronto are natural resources and preservation thereof falls within the term "conservation of land".
Reference was made to the official plan of Metro which shows the major valleys as being in areas designated for a parks system and being lands that should be acquired in conjunction with the program of the Authority in conservation of lands. Also it provides for the protection of natural resources and provision of clean air and water. In outlining specific policies the plan provides that it is the policy to preserve the major valleys in a natural state from crest to crest except for compatible recreational use and essential public purpose with all other development which would interfere with flooding or require the placing of fill being disallowed. On these policies Metro opposes development unless the proposed use falls within the exception, e.g. golf courses, and if development is otherwise the Authority should acquire the property.
Reference was made to other similar applications for zoning and official plan changes where the position had been taken that the land was in a valley suitable for acquisition by the Authority and that such position had been upheld by the Ontario Municipal Board. Counsel emphasized that it was the policy of his client that the Authority should proceed to acquire the subject lands.
Counsel also submitted that if the appeals were allowed there is not authority in the Act to impose conditions.
In reply counsel for the appellant admitted that the list of approvals, and perhaps more, would be required before his client could proceed but he submitted that in accordance with the 1977 decision of Vanderzwaag v. Grand River Conservation Authority, such matters of need for zoning changes are separate and irrelevant. He referred to the seven years of buffeting from one public authority to another that his client had endured. The concerns of these other authorities should be considered in the proper forum. He submitted that the issue before the tribunal should be whether the land has the capability of supporting the proposal and not whether the proposed use was compatible with zoning or planning requirements.
He also submitted that the argument of Metro that its policy was that the Authority should acquire the subject lands is irrelevant. The evidence indicated long opportunities for such to occur but there is no evidence of any serious offers or negotiations. It was submitted that it was unfair to deny the permission on the ground that the Authority might purchase the subject lands.
Counsel distinguished the Rosenberg case as not being an interpretation of the phrase "conservation of land" and dealt only with land owned by the authority and whether it could convey it. Where a public agency is dealing with private interests it must act within the thrust and purpose of the legislation under which it acts, LaRush v. The Metropolitan Toronto and Region Conservation Authority (1968) 1 O.R. 300 and Re Multi-Malls Inc. et. al. and Minister of Transportation and Communications et. al. 14 O.R. (2nd) 49.
Dealing with the law applicable to this matter, the tribunal is not aware of any decisions, other than its decisions, dealing with the phrase "conservation of land". An argument was raised in a case before the Land Compensation Board entitled Rattray Park Estates v. Credit Valley Conservation Authority where the issue was the interpretation of the phrase "conservation of natural resources" in the Planning Act and the power of the Minister of Municipal Affairs under that Act. The Chairman said at pp. 17 and 18 of his decision,
"Counsel for the claimant submitted that in any event plant life, bird and animal life and restricted uses of land are not embraced in the conservation of natural resources. He relied on a decision of The Mining Commissioner hearing an appeal on the refusal of a conservation authority to permit the placing of fill and the construction of a building on certain lands. The Commissioner upheld the appeal. Whether the placing of fill and construction would cause or contribute to water pollution was the narrow issue before the Commissioner and he stated that matters respecting plant, bird and animal life and restricted uses of land were not principles related to the inquiry at hand. Had the issue before the Commissioner been "the conservation of land" which is another subject with which conservation authorities are required to deal under The Conservation Authorities Act, the question remains as to what the position of the Commissioner would have been. The Board does not accept counsel's argument."
The quotation is of little assistance.
With reference to Mr. Wigley's argument based on section 10 of the Interpretation Act, it must be remembered that the provisions creating powers of conservation authorities in the Conservation Authorities Act relate to three significantly different matters.
First, under subsection 2(4) authorities are made bodies corporate. Hence sections 20 and 21 relate to the corporate aspect of conservation authorities where matters of objects and powers are, or at one time were, relevant to corporate status.
Secondly, through the exercise of the powers contained in section 21 and the following sections conservation authorities are authorized to carry out administrative action such as investigation, acquisition and disposition of lands, entry into agreements and creation of works. Included in these matters is the section under review in the Rosenberg and LaRush cases.
Thirdly, conservation authorities are granted a legislative jurisdiction, a power to make laws, i.e. regulations, by sections 28, 29 and 30. While the powers to legislate contained in sections 29 and 30 relate to activities of the authority and persons using authority lands and hence are somewhat administrative in nature, the power to legislate contained in section 28 provides for the control of and restriction of the rights of private landowners, reading as follows:
28.--(1) Subject to the approval of the Lieutenant Governor in Council, an authority may make regulations applicable in the area under its jurisdiction,
- restricting and regulating the use of water in or from rivers, streams, inland lakes, ponds, swamps, and natural or artificially constructed depressions in rivers or streams;
- prohibiting or regulating or requiring the permission of the authority for the straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse;
- regulating the location of ponds used as a source of water for irrigation;
- providing for the appointment of officers to enforce any regulation made under this section or section 29;
- prohibiting or regulating or requiring the permission of the authority for the construction of any building or structure in or on a pond or swamp or in any area susceptible to flooding during a regional storm, and defining regional storms for the purposes of such regulations; and
- prohibiting or regulating or requiring the permission of the authority for the placing or dumping of fill of any kind in any defined part of the area over which the authority has jurisdiction in which in the opinion of the authority the control of flooding or pollution or the conservation of land may be affected by the placing or dumping of fill.
While it is relevant to apply a broad interpretation to the administrative powers of a conservation authority, as was done in the Rosenbers case, this tribunal is of the opinion that where the act of a conservation authority is a legislative one and one that affects the rights of landowners generally, it may be more appropriate to apply the exception to the broad interpretation rule outlined on p. 258 of the Twelfth Edition of Maxwell on Interpretation of Statutes where it is noted,
Where a statute confers a power, and particularly one which may be used to deprive the subject of proprietary rights, the courts will confine those exercising the power to the strict letter of the statute.
While an exception appears in respect of planning notices at p. 261 in the following words,
In the case of planning notices, however, there has recently been a movement away from the strict exaction of compliance with technical requirements. Lord Denning M.R. has said that a good deal of water has flowed under the bridges since East Riding County Council v. Park Estate (Bridlington), Ltd., in which Viscount Simonds said that there must be strict and rigid adherence to formalities. "We found that many people were taking an undue advantage of that satement. Formalities were being used to defeat the public good. So we no longer favour them….
the general principle would appear to be applicable to matters depriving a landowner of proprietary rights and it is essential at a minimum not to extend the meaning of the phrase under consideration but to limit it to its common and ordinary meaning, the normal test for interpreting statutes and which test was endorsed by all counsel.
It is noted that the dictionary meanings set out in argument use the words "conserve" and "preserve" interchangably. However, the Legislature of Ontario has enacted legislation where the obvious intent is preservation in the existing state. Section 2 of the Wilderness Areas Act R.S.O. 1980, c. 533 deals with such matters in respect of public lands and reads,
2. The Lieutenant Governor in Council may set apart any public lands as a wilderness area for the preservation of the area as nearly as may be in its natural state in which research and educational activities may be carried on, for the protection of the flora and fauna, for the improvement of the area, having regard to its historical, aesthetic, scientific or recreational value, or for such other purposes as may be prescribed.
It will be noted that the key words related to the purpose are "for the preservation of the area as nearly as may be in its natural state".
The regulation making powers contained in section 7 of this Act are as follows:
- for the care, preservation, improvement, control and management of wilderness areas;
- for prohibiting or regulating and controlling the use of lands in wilderness areas;
- for prohibiting or regulating and controlling the admission of persons or domestic animals to wilderness areas and for issuing permits to persons to enter and travel in wilderness areas and prescribing the terms and conditions thereof and the fee therefor;
- respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act.
It will be noted that the word "conservation" is not used in these clauses. Clause a uses the concept of "preservation" and even this concept is coupled with matters of care, improvement, control and management.
In regard to private property the Ontario Heritage Act, R.S.O. 1980, c. 337 in relating to the objects (section 7) and powers (section 10) of the Foundation uses the phrase "conservation, protection and preservation".
It is clear that the Legislature distinguishes between conservation and preservation and reading the Conservation Authorities Act in the context of related statutes, it can only be concluded that the word "conservation" must have a narrower meaning that the word "preservation".
Regarding the Conservation Authorities Act in its own context, it may be noted that while the objects and programs of an authority relate to the conservation of natural resources, the legislative powers extend to conservation of land. The distinction between "natural resources" in the former and "land", which is only part of the natural resources, indicate that a narrower interpretation must be placed on the legislative powers as contrasted with the objects and programs of a conservation authority.
In the opinion of the tribunal the legislative jurisdiction does not extend to matters of "preservation" or to matters of "natural resources". The difference in wording is not consistent with a parallel meaning being given to both areas. Accordingly, the tribunal cannot accept the second point argued by Mr. Wigley.
Closely related to this aspect of the case, the argument of Mr. Sillers that the policy of Metro as expressed in its Official Plan, in the zoning by-laws of the local municipalities and the policy statements of both, cannot enlarge the legislative jurisdiciton of the Authority. While the objectives of the municipalities and the Authority may be coincidental and supportive of each other, the tribunal cannot conclude that official plans and zoning by-laws, which are broader in scope than matters within the legislative jurisdiction of a conservation authority, authorize the Authority to apply the municipal policies in administering its regulation. It may well be that the granting of permission by a conservation authority would be an exercise in futility, but the systems of control of private rights have differing enforcement and amending procedures and it would seem to the tribunal that if a conservation authority were satisfied that a proposal fell within the laws made by that authority, the permission should be granted and the landowner given an opportunity to determine whether an amendment or, exception could be obtained in respect of the other jurisdictions. Conversely, the applicant landowner must be taken to know that the granting of permission does not equate with compliance with the requirements of other jurisdictions or replace the necessity to acquire property rights.
Turning to Mr. Wigley's first point, namely, that the proposal effects the conservation of land, the tribunal is of the opinion that the phrase must be given a narrower meaning than the phrases "conservation of natural resources", where the distinction goes to the subject matter of the control and "preservation of land", where the distinction would go to the nature or extent of the control. With reference to Mr. Sillers suggestion regarding the third meaning of the word "conserve", i.e. its use in connection with food, that meaning probably is helpful in determining the meaning of the word. When one concludes that preservation, i.e. retention in the existing state, was not the intention of Legislature, on the reasoning that "preservation" was not used in this Act but has been used in others, there is no reason why the word "conservation" could not mean a change in nature to permit use at a later date. However, in this regard there was no evidence of such a position by either respondent.
In the opinion of the tribunal the proper meaning to be attributed to the word "conservation" is the concept of wise use as contrasted with retention in its existing state, where as is the case under the Ontario Statutes there is a distinction between that word and "preservation".
On the other hand, the word "land" although narrower than "natural resources" does not warrant an exhaustively narrow interpretation. It is not preceeded by the definite article so as to limit the consideration to the subject lands and there was no argument that it was irrelevant to consider the effect on adjoining lands or other lands within a range of effect. Also the word normally is not restricted to the earth itself. The word is defined in clausel(e) as,
(e) "land" includes buildings and any estate, term, easement, right or interest in, to, over or affecting land;
It would be a strange conclusion to hold that the artificial, both physical and legal, components of land are included but not the natural growth on the land and the tribunal is satisfied that the word includes trees and lesser vegetation. Consequently, the trees and other vegetation have to be considered in the light of the concept of wise use.
The question was not argued as to the effect of a use which would constitute a private nuisance or a matter otherwise actionable by a neighbouring landowner. The argument of the Authority was very close to an argument that the proposed project constituted a legal wrong against adjoining landowners and Metro requested and was made a party on the basis of alleged technical trespass. The Authority did not arrange for the owner of the cemetery land to make a similar approach on the basis of alleged nuisance to the cemetery slopes but it produced a factual case, which if accepted, might in law constitute the establishment of such a wrong.
The tribunal has considerable difficulty in accepting the concept that an executive committee or the Minister of Natural Resources should be expected to deal with such an issue on an application of this nature and is of the opinion that such issue should be dealt with by the regular courts, particularly where the landowner is not a party and the conservation authority which raises an alleged injury to an adjoining landowner does not arrange to have the landowner made a party. One aspect is clear, namely, that the granting of permission would not remove a cause of action of the adjoining landowner.
The alleged injury to the subject lands consisted of the removal of species of sedge grasses and willow, poplar, ash, birch and sumach. The former species exist by reason of the remnant of the aquatic environment of the old mill pond and are related to the previous use of the land which may have been artificial. The tribunal inquired on this aspect but the history was not available. Even the alleged rare species on the slopes, i.e. red oisure dogwood and hop hornbeam, are found in Ontario in abundance but were classed as regionally rare because of the location of the subject lands in the heart of a large metropolis. There was no evidence that any of the species fall within the concept of endangered species.
Another alleged area of damage was the possiblity of sunscald and windthrow to the trees on the adjacent lands. The evidence of the forester who had provided professional services to the subject lands for a number of years gave the opinion that such was unlikely because the trees now growing on the subject lands are on a lower elevation with the result that the trees on the adjoining lands have been exposed to the sun and wind and have established a resistance against the natural forces which would not be increased by the removal of the trees on the subject lands.
Another area of expressed concern was the issue of increase in the water table and this leads to a consideration of the expert geotechnical evidence. Both witnesses were well qualified and experienced. Both had been engaged after the fact, i.e. after the original decision of the executive committee. Gray may not have made as thorough an examination of the slopes on the adjoining lands as Pullen but his evidence was that it was conducted within the normal perameters of professional service. While Gray admitted the possiblity of short term increase in the water table his opinion was that the subsequent construction of drainage works and asphalting of areas as well as the erection of houses would speed up the run-off and after six months the probability would be a lowering of any increase to the original level or perhaps lower. There was no evidence of adverse effects of the level becoming lower and the tribunal accepts Gray's position in this aspect of the matter.
The evidence regarding an increase in the susceptability of the adjoining lands to slump or creep as the result of the placing of fill on the toe of the slopes ranges in the area of possibility. The key evidence for the Authority was the evidence of slumping said to be apparent from the condition of the soil around the roots of the trees and the curvature of the trunks of the trees. The forestry evidence, as contrasted with the geotechnical evidence was that these are natural conditions of trees growing on slopes or trees reaching for sunlight and the tribunal accepts the forestry evidence in this regard.
With reference to the slopes to the north, although the existing tree growth did not include regenerative growth, the angles of the bank were not of concern. The only areas mentioned were gullies created by run-off or human use and it is difficult to saddle the appellant with the lack of management or care of the owners.
The evidence of existing slippage in the upper area of the cemetery slopes was dealt in opposing fashions by the expert witnesses. Gray's approach was that this was a localized and to be expected result in a slope of the nature of the cemetery slopes. Pullen treated them as evidence of a risk that presently exists but the increase of the risk seems to be related to the use of the banks by trespassing children from the subdivision. Why this would be greater than the risk from the trespassing public if the subject lands were acquired for park purposes is difficult to understand.
It was submitted that Gray had agreed the angle was greater than the angle of repose. The tribunal understands his evidence to be that such is the case but with the tree and other cover, the banks should be characterized as stable.
The tribunal accepts the evidence of Gray that the proposal will not increase the risk of slumping, either superficial or deep-seated or rotational and the tribunal finds on the evidence that there is not a probable risk of injury to the adjoining lands from the proposal. Even if one were to accept the evidence of Pullen, it would have to be concluded that the slopes as they exist have an inherent risk of slumping but accepting this his evidence is nothing more than an opinion that there is a possibility of a causal effect between the placing of the fill and the increase in risk. Gray's evidence is related to the probabilities.
The tribunal finds it difficult to understand why a landowner should be prevented from carrying out a proposal on his land that does no harm to his land merely because a neighbouring owner whose property is subject to slumping takes no action to reduce that risk.
Accordingly, the tribunal is satisfied that there is no evidence on which it can be found as a fact that the proposal will affect the conservation of land.
With reference to the argument respecting the outlet for the residents of Don River Boulevard, it is unnecessary to consider this issue. Had the matter been left to this one issue, the tribunal would probably have concluded that if the proposal was contrary to the regulation in itself, the argument in effect would be an assertion that two wrongs make a right and hence not be acceptable.
Accordingly, the appeals will be allowed.
It is ordered that the appeals be and are hereby allowed and the appellant be and is hereby granted the permission requested in his applications subject to the regime and supervision recommended by his expert geotechnical witness, Brian R. Gray.
And it is further ordered that no costs shall be payable by any party to the matters.
Dated this 22nd day of October, 1984.
Original signed by G.H. Ferguson
Mining and Lands Commissioner